Homeland Security No-Match Regulations Enjoined

The U.S. District Court for the Northern District of California has preliminarily enjoined enforcement of the recently promulgated federal regulations concerning ``no-match'' letters that the Social Security Administration issues to employers. The regulations would have required employers to terminate an employee who could not resolve a discrepancy with a Social Security number within 90 days of the employer's receipt of an Employer Correction Request, or no-match letter.

Final no-match regulations related to the unlawful hiring or continued employment of undocumented workers were announced August 10 by the U.S. Department of Homeland Security. The regulations described the legal obligations of an employer under the Immigration Reform and Control Act of 1986 when receiving a no-match letter from the Social Security Administration, or a letter regarding employment verification forms from DHS. The final regulation also described ``safe harbor'' procedures that the employer can follow in response to receiving such a letter, in order to be confident that DHS would not use it to allege that the employer had constructive knowledge that the employee was not authorized to work in the United States.

The district court granted a preliminary injunction on October 10. It indefinitely prevents federal agencies such as the Social Security Administration or DHS from enforcing the regulations. The court found that there is a strong likelihood that the rules are legally defective. It said the government failed to provide sufficient analysis for its stance that the proposed no-match letter notifies an employer that an employee actually lacks proper work authorization and that the government seemingly failed to assess the impact of the rule on small employers. AFL-CIO, et al. v. Chertoff, et al.; N.D. Cal. Case No. 07-CV-4472 CRB (10/10/07).

Impact: Employers still have obligations regarding unauthorized employment. Employers cannot willfully hire illegal workers; employers who do face criminal and monetary penalties. Employers must continue to be vigilant about ensuring that every employee completes a Form I-9, which demonstrates valid work authorization.